Andiya Vidane V. Jansze, I.

1954 Present: Swan J.

ANDIYA VIDANE, Appellant, and I. JANSZE (Excise
 Inspector), Respondent

S. C. 1,077-M. C. Chilaw, 52,026
 

Excise officer-Power to release on bail an arrested person-Excise Ordinance (Cap. 42), ss. 7, 33 (1), 34, 37-Criminal Procedure Code, ss. 2, 30, 39.

An excise officer is not prima facie a peace officer. When he arrests a person without a warrant, under section 34 of the Excise Ordinance, he has no power under section 37 to release that person on bail.

Therefore, when an excise officer takes a bond from a surety in order to secure the arrested person's attendance in court, a Magistrate has no jurisdiction to forfeit that bond if the accused fails to appear.

APPEAL from a judgment of the Magistrate's Court, Chilaw.

G. E. Chitty, with A. S. Vanigasooriar, for the surety appellant.

A. Mahendrarajah, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

January 13, 1954. SWAN J.-

This appeal raises an interesting question, namely whether an Excise Inspector can take from a person whom he has arrested a bond in order to secure his attendance in court and whether a Magistrate can forfeit that bond if the accused fails to appear.

Excise Inspector Jansze of Chilaw had arrested one Devadasan on a charge of possessing an excisable article. He then took a bail bond from Devadasan and the appellant by which Devadasan undertook to

appear and the appellant bound himself as surety to produce Devadasan in court on 23.4.52 to answer the charge against him. The accused failed to appear, and the appellant was noticed to show cause why his bail bond should not be forfeited. Mr. Vanderkoen appearing for him submitted that the Excise Inspector had no authority to release the accused on bail and that the court had no jurisdiction to forfeit the bond of the surety. The learned Magistrate however overruled the objection and forfeited the bond.

In the course of his order the learned Magistrate observed that the bond was voluntarily given. He also remarked that " most persons arrested would be so happy to get out on bail forthwith that they would not question whether the taking of bail was permitted or not". But neither of these matters is really relevant to the point in issue. It may be that a bond given by an arrested person in circumstances like these could be enforced by the person to whom it was given. The question is whether the Magistrate's Court had jurisdiction to forfeit it.

That the Inspector had the right to arrest the accused without a warrant is beyond question. Section 34 of the Excise Ordinance makes that quite clear. As the offence was bailable the accused was entitled to be released on bail. If Mr. Jansze was a Peace Officer he could have released the accused either on his own bond or on bail. Section 36 of the Criminal Procedure Code provides that a peace officer making an arrest without warrant shall without unnecessary delay and subject to the provisions herein mentioned as to bail take or send the person arrested before a Magistrate having jurisdiction in the case, and section 39 provides that no person who has been arrested by a peace officer shall be discharged except on his own bond, or on bail, or under the special order in writing by a Magistrate.

The crux of the question, therefore, is whether an Excise Officer can be equated to a peace officer. In section 2 of the Criminal Procedure Code the expression " peace officer " is said to include Police Officers and Headmen appointed by a Government Agent to perform police duties. In the Excise Ordinance an Excise Officer is stated to mean a Government Agent, Assistant Government Agent or an officer or other person appointed or invested with powers under Section 7. So that an Excise Officer is not prima facie a peace officer. We must therefore see whether there is anything in the Excise Ordinance which can be construed as conferring upon Excise Officers the pow

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